2002595 (Migration)

[2020] AATA 2894

2002595 (Migration) [2020] AATA 2894 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2002595

MEMBER:Roslyn Smidt

DATE:9 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 09 June 2020 at 2:51pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground of cancellation – risk to safety of Australian community or individual – pending charges – allegations of domestic violence – other charges involving violence against women – grant of bail – character references – consideration of discretion – Australian citizen child – custody or access to child – best interests of child – non-refoulement obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 198

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant's presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 15 April 2020 to give evidence and present arguments.

   BACKGROUND

4. The applicant is a [age] year old citizen of Papua New Guinea. He last arrived in Australia [in] October 2012 on a student visa. In February 2014 he applied unsuccessfully for a partner visa. His application for review of that decision also failed as did his request for Ministerial intervention. He has an Australian citizen daughter, born on [date]. On 20 April 2017 he applied for a protection visa. He was granted a Bridging Visa A [BVA] in association with that application. His protection visa application was refused by a delegate of the Minister on 12 December 2017.  He applied for review of that decision by this Tribunal on 20 January 2018. That application has yet to be determined.

5. The applicant has been in custody since October 2018 after being charged with assault.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e).

7. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

8. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

9. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Claims and evidence

10. On 11 December 2019 the applicant was notified of an intention by the Department to consider cancelling his Bridging A visa. The notice [NOICC] stated that the Department had received information that the applicant had allegedly engaged in acts of domestic violence against his partner and that on 2 October 2018 he had been charged with common assault, assault occasioning actual bodily harm and act with intent to influence a witness. These charges arose from an incident involving the applicant’s then partner, [Ms A].  The notice also set out a range of matters which would be taken into account when deciding whether to cancel the applicant’s visa.

11. In response to the NOICC the applicant submitted that the allegations against him were largely false. He said that if his partner had sustained any injuries it was as a result of actions he had taken to defend himself. He said he intended to plead not guilty when the case came to court and submitted that a decision in his case should be delayed until the outcome of the court case in relation to the charges against him. He said that he did not pose a risk to the safety of [Ms A] or anyone else.

12. The applicant also submitted that the delegate should take account of his relationship with his Australian daughter when considering whether to cancel his visa. He said that he provided ongoing to support to his daughter and that cancellation of his visa would impact ongoing family court matters relating to her custody and on his ability to maintain a relationship with her and teach her about her PNG heritage. He added that his mother and siblings in PNG relied on him for support and would suffer financial and emotional hardship and be unable to visit his daughter if he was unable to remain in Australia. He stated that he could not return to PNG because of risks posed by ongoing political unrest and conflict. He also said that he had always complied with the conditions on his visa and interacted respectfully with the Department of Immigration. Finally, he asked that a decision on the cancellation of his visa be delayed until after the court proceedings in relation to his case were finalised.

13. In his decision the delegate indicated that he had considered the applicant's response to the notice, but ultimately found that the ground for cancellation existed and that the reasons in favour of cancelling the BVA outweighed the reasons for not cancelling the visa. The applicant’s visa was cancelled under s116 (1)(ii) on 21 January 2020.

14. The applicant applied for review of that decision on 11 February 2020. He provided a copy of the delegate’s decision and a lengthy hand-written submission. In essence it repeats his assertion that he is innocent of the charges against him and the other submissions previously made to the Department including his relationship with family and the problems he would face if he returned to PNG.

15. The applicant also provided

    ·a letter dated 14 January 2020 from the NSW Department of Communities responding to a request from the applicant for information on his daughter. It notes that his daughter had been under the parental care of [Ms and Mr B] (the carers) as result of orders of the Children’s Court dated 5 November 2015 which gave them full decision-making responsibility in all aspects of her care. It states that the Department provided a supported care allowance to her carers, but had no other involvement with her care or information on her progress.

    ·A letter from [Mr C] dated 5 March 2019 which was provided in support of an application for release from prison. [Mr C] stated that he was a [age] year old pensioner and said that the applicant was a friend who had moved into his house sometime in 2016 and eventually became his carer. He said that the applicant had helped him with a number of chores which he had difficulty doing himself including cleaning and maintaining his house and yard, cooking, taking him shopping, taking him to church and providing social and spiritual support. He said that the applicant also helped to protect him from people who had previously taken advantage of him and helped him to resolve problems relating to his status as an Australian citizen and obtaining a copy of his land title.

    ·records of his attendance at a program for perpetrators of domestic violence while in prison.

16. The applicant attended a hearing of the Tribunal on 15 April 2020. He confirmed that he had read and understood the delegate’s decision on his case.

17. I noted that the applicant’s Department file contained information on his criminal record and charges that were pending against him. The information is contained in a bail report prepared by NSW Police in November 2018. In addition to a number of traffic offences it states that the applicant was convicted of using a carriage service to menace/harass/offend in September 2013, fined $500, required to do 150 hours community service and placed under the supervision of the NSW probation service. In 2013 and 2014 he faced charges in relation to contravention of an AVO and assault. Most of these appear to have been annulled or dismissed, but one resulted in a sentence of 100 hours community service. In January 2017 he was charged with aggravated sexual assault. He was granted conditional bail on these charges. According to the report that bail was valid until 9 September 2019. On 2 October 2018 he was charged with the offences referred to in the NOITCC. He was refused bail in relation to these charges.

18. I advised him that I found these records somewhat unclear and asked if he had been in jail at any time prior to 2018. He said that he had spent about three weeks in jail was in 2014 following a verbal argument with his mother-in-law. He said that no conviction was recorded on that occasion, but he was required to do community service.

19. I noted that the information on the applicant’s file suggested that he was currently awaiting trial in relation to two separate matters, charges relating to allegations of sexual assault committed [in] January 2017 and charges relating to allegations of assault occasioning bodily harm committed [in] October 2018. The applicant confirmed that this was correct. He said that he had been granted bail in relation to [the] January 2017 charges and this bail had not been revoked. However, he was denied bail in relation to the latter charges. He said that the charges related to alleged offences against different people.  

20. The applicant said that he was innocent of all the charges he was currently facing, that he would plead not guilty at trial and that his lawyer had given him some hope that he would be acquitted.

21. The applicant said that in addition to these charges he had been charged with a number of serious offences, all of which had been dropped. He said that he had problems with his legal representation in relation to these charges.  

22. I advised the applicant that it was not for me to determine whether he was guilty of the charges. I explained that I would be considering the evidence to determine whether he was or might be a risk to the Australian community or to the or safety of an individual or individuals and that the outstanding charges against him were something that I would be considering when making this determination. However, I would not be considering charges which had been withdrawn.

23. I asked the applicant about his relationship with his Australian daughter. After some confused discussion it was established that the applicant lived with his daughter until about January 2015. It appears that he also lived with the child’s mother for some or all of this time. It appears he lost custody of his daughter after he had the altercation with his mother in law in 2014. It is not entirely clear where or with whom the applicant’s daughter lived between this time and November 2015 when the Family Court orders were issued, but it appears that she spent some time with her current carers. The applicant claimed that he visited his daughter on a weekly basis from January 2015 to November 2015. It appears that there were ongoing court proceedings in relation to the custody of the applicant’s daughter for at least some of that period.  

24. The applicant initially described his daughter’s carers as his brother and sister in law, but as he later said that they were not from PNG, this does not appear to be correct. It appears that they may be related to his daughter’s mother. He claims that he is on good terms with them.

25. I asked that applicant why his wife had not been given custody of their daughter. He said that she suffered from mental health issues including bi-polar disorder and the court had decided that she was unfit to care for their child.

26. The applicant said that he had visited his daughter about once a month after the court order was issued in November 2015 as this was what was stated in the court order. He said that the court had said that he and his daughter’s carers could made whatever arrangements they wished because they were related. I asked why he had not visited her more often. He said that his daughter’s carers were busy and added that he never stopped trying to see his daughter. When asked he confirmed that he had seen his daughter about once a month between November 2015 and the time he was taken into custody in October 2018. 

27. I asked the applicant what support he had provided for his daughter. He said that he always bought her a present on her birthday and gave her small gifts on other occasions. He claimed that he had asked his daughter’s carers if he could give them money every week to help with her support, but they declined his offer. On one occasion in about 2015 his mother and sister visited from PNG and they spent time together. He said during their monthly visits he had spoken to her in his PNG language and taught her traditional dances.

28. I advised the applicant that it would be useful if I had some independent evidence regarding his relationship with his daughter, for example something from her carers. He said that he had not had any contact with his daughter or her carers during the time he had been in custody because he did not have their contact details. He said that these details were on his phone, but he had not had his phone when he was arrested. He later added that his possessions were stolen or burnt. I observed that nevertheless it seemed that he should have been able to contact them perhaps with the assistance of welfare workers at the jail. He said that he had asked a range of people for help, but he had not been able to contact his daughter or her carers since he was arrested. I observed that if his daughter’s carers had wanted to contact him and ensure he had contact with his daughter perhaps by telephone it appeared they would have been able to do so. The applicant said he had spoken to his daughter’s mother, but she had not helped or not been able to help.

29. I noted that the applicant had previously stated that he was currently involved court proceedings in relation to custody or access to his daughter and asked him for more information about this. He said that he had initiated a restoration process to get custody or greater access to his daughter. He said that he had begun this case in about 2015 or 2016, but his lawyer had not yet taken the case to court. He said that he had been doing well and he was working and attending some kind of classes and he had documents relating to this.

30. During the hearing I noted that the applicant had submitted that his visa should not be cancelled because he needed to support his mother and other family members in PNG. I observed that his need or desire to support or help family in PNG did not appear to be relevant to whether or not his BVA should be cancelled. The applicant said that his mother worked as [an Occupation] in PNG, but she did not earn sufficient money for the family’s needs and he helped with expenses such as his brother’s school fees.

31. I also noted the applicant’s submission that he needed to remain in Australia because he would be at risk of harm if he was returned to PNG. I observed that his protection visa application was yet to be considered by the Tribunal and that cancellation of his bridging visa would therefore not place he at risk of being returned to PNG. He made no further submissions regarding this issue.

32. I asked the applicant if there was anything he would like to add. He said that he had spent nearly eleven years living in Australia and he had more connections and family in Australia than in PNG, for example with his daughter and her carers. He also had connections in church and the community. He said that he was on good terms and with his former mother in law, although he had not been in contact with her since he was taken into custody.  He also noted that he had been largely compliant with conditions on his visa in Australia.

33. Following the hearing the applicant provided a copy of the court orders issued in November 2015. It states that as there was no realistic possibility of returning his daughter to his care or the care of her mother all aspects of parental care had been allocated to her current carers until she reached the age of 18. It states that the applicant was given the right to visit his daughter at least once a month with visits to be supervised by her carers. It also states that other visits could be organised between the applicant and his daughter’s carers.

34. The applicant also provided several character references from three members of his church and a prison Chaplin all of which note his involvement with the church and state that he is of good character.

    Does the ground for cancellation exist?

35. As noted above,116(1)(e) provides for the cancellation of a visa in cases were certain grounds specified in that provision are made out. These include s.116(1)(e)(ii) which states that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. As also noted above, the courts have found that there does not have to be, any direct, solid or certain foundation the power can arise.

36. In the applicant’s case he was charged with common assault, assault occasioning actual bodily harm and act with intent to influence a witness in relation to an incident allegedly involving domestic violence against his then partner [Ms A]. The charges have yet to be finalised in court and the applicant maintains that he is innocent and does not pose a risk to his former partner or anyone else in the Australian community. It is of course for the court to decide whether the case against the applicant is proven beyond reasonable doubt. However, the cancellation power does not require that an applicant has been convicted of an offence. For the relevant ground to be make out the decision maker must be satisfied the applicant’s presence is or may be a risk to an individual or individual in Australia. Such a finding is supported by the nature of the charges the applicant is facing in relation to the alleged assault of his former partner, and by the fact that he has been refused bail in relation to these charges.

37. The applicant also faces charges of sexual assault against another woman with whom he was previously involved.  He was released on conditional bail in relation to these charges.  He maintains his innocence and the case has yet to be finalised by the court. However, the charges suggest that he may have a history of engaging in violence against women which also supports a finding that he may be a risk to [Ms A] and possibly other women in Australia in future.

1. In considering the application I have also noted the character references from members of the applicant’s church and the evidence regarding his attendance at a program for perpetrators of domestic violence while in prison. However, while I have given them some weight, they do not outweigh the concern raised by the allegations set out above.  The references from the applicant’s friends and the prison Chaplin are general in nature and provide little insight into his likely behaviour in relation to his former partner. The record of attendance at the program for perpetrators of domestic violence demonstrates the applicant has participated in the program. However, it provides no information regarding the likely impact of this on his future behavior.

2. After considering all of the relevant evidence, I am satisfied that the ground for cancellation in s. 116(1)(e)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

3. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

4. After considering the applicant’s written response to the NOICC and the evidence he provided at the hearing, for the following reasons I have concluded that the reasons to not cancel the BVA do not outweigh the grounds for cancellation.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.

5. The applicant originally travelled to Australia on a student visa and later applied unsuccessfully for a partner visa. He later lodged an application for protection which was refused by a delegate of the Minister. He lodged an application for review which has yet to be determined by the Tribunal.

6. In his response to the NOICC and in oral submissions to the Tribunal the applicant raised two main issues as giving rise to a compelling need to remain in Australia and therefore weighing against cancellation of his bridging visa A; his claimed fear of harm if he returns to PNG and his need to remain in Australia in order to support and maintain a relationship with his Australian daughter.

7. As noted above, the applicant’s protection visa application is currently before the Tribunal. A decision to cancel his BVA would not result in his removal from Australia as Section 198(5A) of the Act provides that an officer must not remove an unlawful-non citizen if the he or she has made a valid protection visa application and that application has not finally been determined. Furthermore, no evidence has been provided which suggests that cancellation of the applicant’s BVA would have any impact on his ability to pursue his claim for protection.

8. The applicant’s daughter was removed from his care in about January 2015 when she was about [age] and in November 2015 the Children’s Court of NSW gave full-parental rights to her current carers. There is no evidence which suggests that the situation has changed since then.

9. The applicant claims that he has always sought to maintain a relationship with his daughter.  He claims that he visited her weekly from January 2015 when she was taken into care until November 2015 and about once a month from then until he was arrested in October 2018. He claims that he gave her gifts and taught her about his culture. In response to the NOICC he also claimed that he was engaged in an ongoing Family Court matter in relation to his daughter’s custody. However, at the hearing he said he had not commenced proceeding at the Family Court, but he had engaged a lawyer in anticipation of taking legal action in future.

10. No independent evidence has been provided which confirms the applicant’s contact with his daughter prior to October 2018 or his contact with a lawyer in relation to possibly seeking custody or greater rights in relation to his daughter. Furthermore, even if I accept his evidence regarding these issues it is clear that he has had only limited contact with is daughter for most of her life. The Family Court order provided for the possibility that he had more than monthly contact with his daughter, but despite claiming to be on good terms with his daughter’s carers he does not appear to have taken advantage of this possibility.

11. It is clear from the applicant’s evidence that he has had limited contact with his daughter since at least late 2015. It is also clear that he has provided her with little if any support during that time.  His lack of contact with his daughter is the result of issues other than his possession or lack of a BVA. It appears to relate in large part to his behaviour as a parent and choices he has made.  I am sceptical of the applicant’s claim that he plans or hopes to take legal action to regain custody or at least great access to his daughter. Nevertheless, I accept that the applicant may now wish to improve or develop his relationship with his daughter. The letter from NSW Department of Communities dated January 2020 indicates that he made some inquiries about her welfare at that time. I have given some weight in favour of the applicant in relation to this factor.

12. The applicant claims that after spending much of his life in Australia he has had closer ties to his family and friends in Australia than in PNG. The applicant’s only relative in Australia appears to be his daughter (see above). Apart from the letter from [Mr C], no independent evidence has been provided which suggests that he has strong ties akin to a family relationship with anyone in Australia. He claims to be close to his daughter’s carers, but the fact that they have not maintained contact with him during the time he has been incarcerated suggests that this is not the case. While I acknowledge that the applicant has developed some ties to Australia, it is clear that he also has strong ties to his family in PNG as he claims to continue to support them when he can. I do not accept that the applicant’s extended stay in Australia and the fact that he has established some friendships while living here means he has a compelling need to remain and have given no weight in favour of the applicant in relation to these considerations.

13. I have accorded little weight against cancelling the BVA in relation to this factor.

    The extent of compliance with visa conditions

14. In his response to the NOICC the applicant said that he had always complied with the conditions on his visa and had interacted respectfully with the Department. It appears that this is not entirely accurate as the student visa on which he last entered Australia was cancelled.  However, there is no evidence that he has failed to comply with conditions on visas which he has held since that time or that there have been any problems with his dealing with the Department.

15. I have accorded no weight for or against cancellation of the applicant’s BVA in relation to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

16. In his response to the NOICC and at the hearing to applicant claimed or suggested that he, his daughter and his family in PNG would experience hardship if his BVA was cancelled.

17. As discussed above, the applicant lost custody of his daughter in 2015 and has had at most limited contact with her since that time and none since October 2018. Apart from some gifts, he has not provided her with any financial support. No evidence has been provided by the applicant’s daughter’s carers or anyone else which suggests that she would experience hardship if the applicant’s BVA was cancelled. While I acknowledge that lack of an ongoing relationship with the applicant may have cause his daughter some degree of hardship at some time in the future, I do not accept that she will experience financial, psychological, emotional or other hardship as a result of the cancellation of her father’s  BVA.

18. In his response to the NOICC and his oral submissions at the hearing the applicant claimed that his family in PNG would face financial and emotional hardship if his BVA was cancelled because he had supported them financially in the past and because his mother would no longer be able to visit his daughter in Australia. In my view the situation of the applicant’s family in PNG is not a relevant consideration when considering whether his BVA should be cancelled. In any event, I note that his mother works as [an Occupation] in Port Moresby which suggests his family would not suffer great financial hardship as a result of his inability to send them financial support. I also note that there appears to be no reason why the applicant could not continue to assist his family if he returned to PNG. Finally, I note that the applicant’s mother would not lose the right to apply for a visa to visit her granddaughter in Australia as result of the cancellation of his BVA. I do not accept that the applicant’s family in PNG would experience any real financial, psychological, emotional or other hardship as a result of the cancellation of his BVA.

19. I have also considered the degree of hardship which the applicant himself might experience if his BVA is cancelled. The applicant is currently in jail awaiting trial in relation to charges laid in 2018. Cancellation of his BVA would have no immediate impact on his circumstances. In the longer-term cancellation of his BVA may result in him being placed in migration detention and also impact on his ability to work and to develop a relationship with his daughter. These considerations are dealt with elsewhere.

20. I have accorded no weight for or against cancellation of the applicant’s BVA in relation to this factor.

    Circumstances in which ground of cancellation arose.

21. The applicant’s BVA was cancelled because he was charged with assault in relation to allegations involving domestic violence and denied bail in circumstances which suggested that he might pose a risk to his former partner who was the alleged victim of the assault.

22. Domestic violence is a serious issue which causes great harm and distress to many in the Australian community. I note that the applicant has been subject to an apprehended violence order in the past and that in addition to the charges which led to the cancellation of his BVA, he is facing other charges involving violence against women. While I acknowledge that the applicant maintains his innocence of all these charges and that he has participated in a program which appears to be aimed at assisting perpetrators of domestic violence to change their behaviour, this does not reduce the seriousness of the charges against him.

23. The Australian community has a reasonable expectation that domestic violence be viewed as a serious matter and that those who engage in violence of this kind when they are on temporary visas should have action taken against their visas. The charges which give rise to the ground for cancellation weigh strongly in favour of cancelling the BVA.

    Past and present behaviour of the visa holder towards the department

24. There is no evidence that the applicant has behaved adversely towards the department in this matter or any previous interactions. In my view failure to cooperate with the Department could weigh in favour cancellation of the applicant’s visa, the fact that the applicant has merely done what would be expected of anyone in their dealings with a government department does not weigh against cancellation of his visa. 

25. I have accorded no weight for or against cancellation of the applicant’s BVA in relation to this factor.

    Whether there would be consequential cancellations under s.140

26. The applicant has not claimed, and there is no evidence of any consequential cancellations that may occur to another person as a result of the decision to cancel the applicant’s BVA.

    Legal consequences of a decision to cancel the applicant’s visa.

27. In the event that the applicant’s visa is cancelled he will become an unlawful non-citizen and be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart. Immigration detention is not a punitive measure. It is an administrative action designed to regularise the immigration status of an unlawful non-citizen.

28. The decision to uphold the cancellation decision may also mean that the applicant is subject to s.48 of the Act, which prohibits him from applying for most visas while he is in Australia’s migration zone. However, upholding the decision to cancel the BVA does not mean that the applicant would be unable to pursue his application for protection which is currently at the Tribunal or that he would be unable to apply for a bridging visa E which, if granted would allow him to remain in the community while awaiting a decision on this application.

29. I have given the fact that the applicant may be liable to immigration detention and prohibited from applying for further visas no weight as a reason to not cancel the BVA.

    Australia’s international obligations.

30. The applicant claims to fear persecution if he is returned to PNG.  This raises the issue of Australia’s non-refoulement obligations as set out in the Refugee Convention. However, a decision to cancel the applicant’s bridging A visa would not result in his removal from Australia as Section 198(5A) of the Act provides that an officer must not remove an unlawful-non citizen if the he or she has made a valid protection visa application and that application has not finally been determined. The applicant’s protection visa application has yet to be finally determined by the Tribunal. In these circumstances, cancellation of the applicant BVA would not involve any breach of Australia’s obligations under the Refugee Convention. I have given no weight in favour of not cancelling the applicant’s BVA in relation to this issue.

31. The fact that the applicant has an Australia citizen daughter also raises issues in relation to Australia’s obligations under the Convention of Rights of the Child (CRC). Article 3.1 of that Convention states:

    ‘ in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests interest of the child shall be a primary consideration.’

32. I accept that is generally considered that a child’s best interests are better served when their parents are involved in their lives. However, the applicant lost custody of his daughter in 2015 as a result of a decision of the Children’s Court of NSW.  Courts are obliged to take account of the best interests of a child when considering and making orders of this kind and the Court clearly decided that it was in the best interests of the applicant’s daughter that she be placed in the care of someone other the applicant. There is no evidence which suggests that the situation has changed since that time. As discussed above, the applicant has had limited contact with is daughter and provided her with little support for most of her life and the evidence does not suggest that cancellation of the applicant’s BVA would have any detrimental impact on her well-being now or in the foreseeable future.

33. In these circumstances, cancellation of the applicant BVA would not involve any breach of Australia’s obligations under the CRC. I have given no weight in favour of not cancelling the applicant’s BVA in relation to this issue.

    Other considerations

34. In response to the NOICC and in submissions to the Tribunal the applicant asked that a decision on his case be delayed until the charges against him have been finalised. There is no suggestion that upholding the decision to cancel the applicant’s BVA would have any impact on his ability to fight the criminal charges which he is facing. He has asked that the decision be delayed as he believes he may be acquitted of the charges which he is facing. The Tribunal is under no obligation to delay a decision on his application because he is hopeful of being acquitted of the charges against him.

35. At the hearing the applicant said that he had applied for assistance with his case from Legal Aid and asked that a decision be delayed to allow him to obtain advice and assistance. Following the hearing he provided a letter which confirmed that he had applied for Legal Aid in relation to the cancellation of his visa and asked him to provide additional information so his application could be considered. I agreed to delay finalisation of the applicant’s case to allow him to obtain legal advice or assistance. However, while he appears to have received some informal advice from a lawyer who is assisting him in relation to the criminal charges he is facing, it appears that he has not obtained the assistance of a lawyer or migration agent. It is not possible for the Tribunal to delay finalisation of the applicant’s case indefinitely. Furthermore, he is a relatively well-educated man who speaks excellent English and appeared to understand the situation in relation to cancellation of his visa and the information which was required in relation to his application for review.

36. The applicant claims that he has been unable to obtain or provide evidence which might support his case because he is in jail and because of the coronavirus pandemic. I do not accept that he was unable to obtain or provide relevant information for either of these reasons. When I suggested that he seek information from daughter’s carers regarding their relationship, he said that he had not been able to contact them because he did not have his mobile phone, because some of his possessions had been burned and because nobody had been able to assist him in contacting his daughter. If the applicant was on good terms with his daughter’s current carers and had played a significant role in her life prior to being jailed I believe that he would have had some contact with them while in prison and that they or someone else familiar with his circumstances would have been able to confirm his account of his relationship with his daughter.

37. With regard to the claim that problems associated with the current pandemic have restricted his ability to obtain relevant information, restrictions related to the pandemic do not affect communications by email or telephone and I note that the applicant was able to obtain character references from members of his church. I do not accept that he was unable to obtain evidence to support his application because of problems associated with the corona virus pandemic.

38. I have given little weight in favour of not cancelling the applicant’s BVA in relation to the fact that the criminal charges he is facing may result in an acquittal or to his claimed difficulties obtaining advice or supporting evidence in relation to his appeal against cancellation of his BVA.

    CONCLUSION

39. After considering all of the evidence I am not satisfied that the reasons to not cancel the BVA outweigh the grounds for cancellation. As noted above, the circumstances in which the visa was cancelled weigh heavily in favour of cancellation, while other factors provide little or no weight against upholding the delegate’s decision. In reaching this conclusion, I have given particularly careful consideration to the fact that the applicant has an Australia citizen daughter. However, as discussed above, the courts have decided that her best interests are serviced by being removed from his care and the evidence indicates that his contact with her and support for her has been very limited and I have therefore given only a little weight to this consideration.

40. After considering the circumstances as a whole, I have concluded that the visa should be cancelled.

    DECISION

41. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Roslyn Smidt
    Member